This End-User License Agreement (“EULA”) is a legal agreement between you (a legal entity, referred herein as “you”, “your”, or “Licensee”) and Ergotron, Inc. (“Licensor”) for the Licensor’s software (including mobile applications) that accompanies this EULA or that you download or access after agreeing to this EULA, which may also include associated media, printed materials, and “online” or electronic documentation (collectively the “Software”). Software shall also include all related documentation, and updates and upgrades that replace or supplement the Software and are not distributed with separate license terms.
BY SUBMITTING A PURCHASE ORDER DOCUMENT ON BEHALF OF THE ENTITY YOU REPRESENT, OR BY CLICKING THE ACCEPT BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE (DIRECTLY OR THROUGH HARDWARE DEVICES) YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, THEN DO NOT CLICK THE ACCEPT BUTTON, INSTALL, DOWNLOAD, OR USE THE SOFTWARE. IF YOU CLICK THE ACCEPT BUTTON OR INSTALL, DOWNLOAD OR USE THE SOFTWARE, THE TERMS AND CONDITIONS OF THIS EULA ARE FULLY ACCEPTED BY YOU AND THE ENTITY YOU REPRESENT. If you agree to these terms on behalf of any entity or organization, you hereby represent to Licensor that you are authorized to accept these terms on its behalf.
IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, CLICK THE “DECLINE” OR “CANCEL” BUTTON AND DO NOT INSTALL, DOWNLOAD OR USE THE SOFTWARE OR THE HARDWARE THE SOFTWARE IS INSTALLED ON.
SOFTWARE USE. Upon payment of the applicable fees set forth in the Licensor’s purchase order document, if any, Licensor grants you the following rights provided that you comply with all terms and conditions of this EULA:
Licensee Hosted Software. If Licensee has elected to host the Software on its own equipment and as set forth in the Licensor order document, Licensor hereby grants Licensee a limited, non-exclusive, non-transferable license, without rights to sublicense, to use the object code of the Software solely for your internal business purposes, provided such purpose is in accordance with the permitted uses of the Software as set forth in this EULA and applicable documentation. You may use the documentation accompanying the Software in connection with permitted uses of the Software.
Licensor Hosted Software. If Licensee has elected to have Licensor host the Software (“Subscription”) and as set forth in the Licensor order document, Licensor grants to Licensee, the non-assignable, nontransferable, non-sublicensable, and nonexclusive right to access the Subscription and use the Subscription and the applicable documentation only as authorized in this EULA. The Subscription will not be provided to you on any other form of media and will not be installed on any servers or other computer equipment owned or otherwise controlled by you. During the Subscription term, Licensor shall provide you with access to the latest supported version of the hosted Subscription, to be accessed and used by you through the use of the internet. If applicable, Licensor shall provide an administrator user account for secure administrator access and provide this administrator user the necessary tools to create other users for access to the Subscription. You agree that you have elected to access the Software through a Subscription and that this EULA confers no right to convert the Subscription to a license as described in Section 1(a) above without Licensor’s prior written consent and applicable fee.
Embedded Software. If Software is embedded on any hardware device, and pursuant to the Licensor order document, Licensor grants to Licensee a limited, non-exclusive, non-transferable license, without right to sublicense, to use the embedded Software solely on the hardware device originally designed for the Software, in object form only and for such duration as the useful life of the applicable hardware device, and solely for your internal business purposes, provided such purpose is in accordance with the permitted uses of the Software as set forth in this EULA and application documentation. You may use the documentation accompanying the Software in connection with permitted uses of the Software. You agree to the additional terms and conditions that accompany the hardware device that Software is embedded on.
Mobile Applications. If Licensee has elected to download and use any of Licensor’s mobile applications (i.e., the Software), Licensor grants you a limited, non-transferable, revocable license to use the object code of Software on any mobile device that you own or control that the Software is authorized to operate on (as determined by Licensor) and as permitted by this Section 1(e) of the EULA (the “License”). The Software is licensed, not sold, to you for use only under the terms of this EULA. Licensor reserves all rights, title and interest not expressly granted to you. This License does not allow you to use the Software on a device that you do not own or control. The terms of the License will govern any upgrades provided by Licensor that replace or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
TRIAL LICENSES.
General. If available, the Software may be activated with no-cost evaluation Software License Key(s).
Evaluation License. If you activate the Software with an evaluation Software License Key (“Evaluation Product”) you may use the Evaluation Product for 30 days (or such other period as agreed in writing by Licensor) (the “Trial Period”) only to evaluate the suitability of the Evaluation Product for licensing on a for-fee basis.
Trial Periods. If the Software was provided to you at no charge on a trial or evaluation basis, then the Software may be used only for the Trial Period, unless you purchase a further license to the Software at the end of the Trial Period.
THE EVALUATION PRODUCT IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION PRODUCT THROUGH AND AFTER THE TRIAL PERIOD.
No Support. Licensor has no duty to provide support to you during your use of the Evaluation Product.
RESERVATION OF RIGHTS AND OWNERSHIP. The Software is not sold and may only be used under the terms of this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Licensor or its suppliers own the title, copyright, and other intellectual property rights in the Software. Except as expressly stated herein, Licensor and its suppliers reserve all right, title and interest in the Software and all associated copyrights, trademarks, and other intellectual property rights therein. The EULA is limited to the intellectual property rights of Licensor and its suppliers in the Software and does not include any rights to other intellectual property.
LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software by any means whatsoever, or alter, modify, enhance, or create a derivative work of the Software, except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any free or open sourced components included with the Software. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the software.
NO RENTAL/COMMERCIAL HOSTING. Except as expressly set forth in Licensor’s order document for authorized dealers, and pursuant to Section 1(a) for hosted Software, you may not rent, lease, lend, sublicense or provide hosting services with the Software for third parties. You may not use the Software to provide commercial services to third-parties except as expressly stated herein and in the related documentation of the Software.
USE OF DATA.
End users’ Personal Data will be processed according to principles set out in our Privacy Policy at https://www.ergotron.com/portals/0/media/downloads/ekinnex-privacy-policy.pdf
Furthermore, the Licensor undertakes to process Personal Data according to the terms set out in Appendix 1 of this EULA, including the provisions applying to the transfer of your Personal Data outside the European Union.
You agree to us processing the information in accordance with the above-mentioned documents and undertake to provide the individual end users of the Software with the relevant information pertaining to the processing of the personal data and the eKinnex Privacy Policy.
The Software communicates via the Internet with Licensor servers. Based on your mobile data plan with your carrier, standard data transmission rates may apply. Licensor may make routine software updates without informing you to keep the Software working properly. For you to access and use certain features of the Software, you may be requested to share GPS information from your device. The Software may collect location information in processes executing in the background of your device to support the functionalities and features of the Software, including camera and location based functions. Note, that continued use of camera and GPS running in the background can decrease battery life. Upon first use, the Software may ask for your permission to collect user information, use of the camera on your device and on the related Licensor devices as applicable, and location information and upon acceptance, you can start using the Software. Certain mobile operating systems have options to restrict the collection of certain location and usage information. In the event that you have those options enabled, you may restrict certain functionality of the Software. If you wish to stop sharing information required for the Software to function, uninstall the Software at any time from your devices pursuant to their instructions.
TERMINATION. This EULA is effective until terminated. If applicable, the purchase order document agreed to by the parties sets forth the period you are allowed to access and use the Software. Your rights under this EULA will terminate immediately and automatically if you fail to comply with any of the terms and conditions of this EULA. Licensor may terminate this EULA upon notice to you and upon the notice of discontinuance of the Software or Licensor’s recommendation for users to upgrade to newer software. Promptly upon termination, you must cease all use of the Software, destroy all copies of the Software in your possession or control, and, upon request of Licensor, certify such destruction. Licensor’s termination of this EULA will not limit any of Licensor’s other rights or remedies at law or in equity.
ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, or internet-based services components, of the Software that Licensor may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with the update, supplement, add-on component, or internet-based services component. Licensor reserves the right to discontinue any internet-based services provided to you or made available to you through the use of the Software. If Licensor provides Licensee access to any application programming interface or software development kit, Licensee acknowledges and agrees to be bound by those additional terms and conditions that may be included with such software tools.
UPGRADES. To use Software identified as an upgrade, you must first be licensed for the Software identified by Licensor as eligible for the upgrade. Except as otherwise provided in writing, after upgrading, you may no longer use the Software that formed the basis for your upgrade eligibility. Certain Software upgrades or in-app offers may require you to pay additional license fees or service fees in order to receive such upgrade.
SUPPORT SERVICES NOT INCLUDED; LICENSED PROFESSIONAL. Licensor is not required to provide support services under this EULA but may do so at its sole discretion. This EULA does not give you any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by Licensor at any time in the future. Furthermore, Licensor may offer support services separately, and offer such services for a fee or no cost. Any supplemental software code or related materials that Licensor provides to you as part of any support services are to be considered part of the Software and are subject to the terms and conditions of this EULA. Except for expressly designated consumer products by Licensor, you represent, warrant and covenant that you are a licensed professional and understand how to use and upgrade Software and the applicable hardware and software systems that Software interfaces, and take sole responsibility with the installation and upgrade of such systems. If you are unsure how to install, use or access Licensor products, hardware or this Software, please contact us below and we will recommend an independent, third party that may assist you with the foregoing. If you install the Software or activate such Software on behalf of an end user, individual, or entity, you represent and warrant that you shall provide a copy of this EULA to such individual or entity. Nothing stated in this EULA will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
DISCLAIMER OF WARRANTIES.
LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT:
USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK AND THE SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY;
NEITHER LICENSOR NOR ITS SUPPLIERS WARRANT THAT THE SOFTWARE ARE SUITABLE FOR LICENSEE’S USE, THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY LICENSEE THROUGH THE SOFTWARE WILL MEET LICENSEE’S EXPECTATIONS, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED;
NEITHER LICENSOR NOR ITS SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE; LICENSOR DOES NOT WARRANT THAT THE USE OR OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE;
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED AS PART OF OR THROUGH THE SOFTWARE IS DONE AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; AND
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS EULA AND NO USE OF ANY PORTION OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
Not an Insurer. You acknowledge that Licensor is not an insurer and that you assume all risk of loss to person and property within and upon your premises. Licensor does not guarantee nor represent that no loss or injury to person or property will occur with the use of the Software and related products. Licensor is not assuming liability and therefore shall not be liable to you for any loss or damage to person or property as a result of any cause whatsoever, regardless whether such loss or damage was caused by or contributed to by Licensor or its employees’ performance or failure to perform any obligation under this EULA. In the event of any loss or injury to any person or property, you agree to look exclusively to third parties and your insurer to recover damages. You release Licensor from any claims for contribution, indemnity (not expressly provided for in Section 13(a) above for certain infringement claims) or subrogation.
No Active Monitoring. You acknowledge that signals transmitted between your devices, Software and premises are not actively monitored by Licensor real time, and Licensor does not assume any responsibility for the manner in which such signals are received or not received. You acknowledge that signals which are transmitted through the Internet, over telephone lines, wire, air waves, cellular, radio, internet, VOIP, or other modes of communication pass through communication networks wholly beyond the control of Licensor and are not maintained by Licensor, and Licensor shall not be responsible for any failure which prevents transmission signals from reaching any device or monitoring service or damages arising therefrom, or for data corruption, theft or viruses to your devices and computers if connected to an Licensor equipment or devices.
INDEMNIFICATION; INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
Indemnification Against Liability for Infringement. Licensor shall indemnify you against liabilities, claims and legal costs paid to or for the benefit of a third party arising from any third party claim or suit alleging that the Software infringes: (i) any copyright; or (ii) the trade secret or trademark rights of any third party. You shall promptly notify Licensor in writing of any such third party claim. Licensor shall be entitled to have sole control over the defense and settlement of such claim.
Limitations on Indemnification. Licensor shall indemnify you against liabilities, claims and legal costs paid to or for the benefit of a third party arising from any third-party claim or suit alleging that the Software infringes: (i) any copyright; or (ii) the trade secret or trademark rights of any third party. You shall promptly notify Licensor in writing of any such third-party claim. Licensor shall be entitled to have sole control over the defense and settlement of such claim.
Repair or Replacement of Infringing Software. In the event of a third-party infringement claim, Licensor shall, at its sole election and expense: (i) procure for you the right to continue to use the Software pursuant to this EULA; (ii) replace or modify the Software to make it non-infringing while still complying with the terms of this EULA; or (iii) if none of the above options is reasonably available, refund the license fees associated with the infringing portion of the Software, minus depreciation based on a three-year useful life.
Applicability to Third Party Products. Licensor makes no representations or warranties and provides no indemnification or replacement covenants of any kind with respect to Third Party Products, WHICH MAY BE EMBEDDED, LINKED OR SUPPLIED ALONGSIDE SOFTWARE. Licensor’s sole responsibility as to Third Party Products is to pass through any intellectual property warranties, indemnification and replacement provisions that Licensor receives from the vendors or suppliers of such Third Party Products and which Licensor is allowed to pass on. “Third Party Product” means application software products provided by third party vendors, including operating system and application software with which the Software interfaces and which provides certain functionality essential to the operation of the Software. Licensee represents, warrants and covenants that it shall comply with any and all requirements and conditions of any Third Party Products.
Exclusive Remedy. EXCEPT AS OTHERWISE PROVIDED HEREIN, SECTIONS 13(a) THROUGH 13(d) STATE LICENSOR’S AND ITS THIRD PARTY SUPPLIERS’ ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Indemnification by Licensee. Licensee shall fully indemnify and hold harmless Licensor, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest (each a “Licensor Indemnitee”) from, defend Licensor Indemnitee against, pay any judgments awarded against Licensor Indemnitee, and pay all of Licensee’s and Licensor Indemnitee’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on (i) Licensee’s improper or misuse of the Software (including without limitation, in violation of applicable laws, rules or regulations or this EULA); (ii) Licensee’s breach of this EULA; (iii) any acts or omissions by a Software user through Licensee’s access to the Software; (iv) any breach of this EULA by Licensee; (v) Licensor’s compliance with Licensee’s instructions; (vi) Licensor’s use of trademarks, data, content or other materials supplied by Licensee; or (vii) Licensee’s installation or activation of Software on behalf of any third party.
OPEN SOURCE DISCLOSURE. The Software may contain free or open source software, and if so, licenses that govern the use and implementation of such open source software shall be set forth in the ‘readme.txt’ (or similarly named file) included with the Software, or as otherwise set forth in the applicable documentation. By accepting the terms of this EULA, you are accepting the terms of the open source license agreements, the link(s) for which are provided in the readme.txt file or documentation, that govern the use of such open source software, including all disclaimers of warranty and limitations of liability set forth therein. Any open source software governed by open source software licenses shipped with, alongside or embedded in Software is not included in the definition of Software.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LICENSOR OR ANY SUPPLIER, AND EVEN IF LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Licensor and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Licensor) shall be limited to the greater of $50 and the actual, direct damages up to the amount actually paid by you for the Software. The foregoing limitations, exclusions and disclaimers (including Sections 12, 13, 14, and 15) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose; provided that the limitation related to a breach of the Data Processing Addendum shall be USD$100,000.
U.S. GOVERNMENT LICENSE RIGHTS. The Software licensed under this EULA are “commercial computer software” as the term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in 48 C.F.R. 12.212 (Computer Software) and 48 C.F.R. 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFAR”) and its successors.
APPLICABLE LAW. This EULA will be governed by the laws of the State of Minnesota, of the United States of America, without regard to its choice of law principles, as applied to agreements entered into and to be performed entirely in the State of Minnesota. Unless expressly waived by Licensor in writing for the particular instance or contrary to local law, the sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the Minnesota state and federal courts having within their jurisdiction in Minneapolis. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Minnesota or federal law. The parties agree that this EULA is not a contract for the sale of goods; therefore, this EULA shall not be governed by any codification of Article 2 or 2A of any Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (UCITA), or any references to the United National Convention on Contracts for the International Sale of Goods.
ENTIRE AGREEMENT; SEVERABILITY. This EULA sets forth Licensor’s entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. You acknowledge that this EULA is a complete statement of the agreement between you and Licensor with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software. No amendment to or modification of this EULA will be binding unless made in writing and signed by Licensor. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect the invalid, unenforceable or illegal provision shall be amended to achieve as closely as possible the effect of the original term.
INJUNCTIVE RELIEF. You agree that a breach of this EULA adversely affecting Licensor’s proprietary rights in the Software may cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and Licensor shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
NO ASSIGNMENT. Licensee may not assign or otherwise transfer this EULA or the rights or obligations hereunder, either in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Licensor, which consent may be withheld in Licensor’s sole discretion; and any attempted transfer or assignment is null and void and shall be deemed a material breach of this EULA.
CONFIDENTIAL INFORMATION. You acknowledge and agree that the Software and all information emanating from the Software and Licensor’s business in any form are valuable trade secrets of Licensor and “Confidential Information.” You agree that you will not, during or after the term of this EULA, permit the duplication, use, or disclosure of any such Confidential Information to any person (other than your employees, agents or representatives), unless such duplication, use or disclosure is specifically authorized by Licensor in writing prior to any disclosure. You shall use reasonable diligence, and in no event less than that degree of care that you use in respect to your own confidential information of like nature, to prevent the unauthorized disclosure or reproduction of the Confidential Information. Without limiting the generality of the foregoing, to the extent that this EULA permits the copying of Confidential Information, all such copies shall bear the same confidentiality notices, legends, and intellectual property rights designations that appear in the original versions and party shall keep detailed records of the location of all Confidential Information. Licensee shall not make any formal public announcements relating to this EULA (e.g., a press release) without the prior written approval of Licensor, unless otherwise required by law.
Electronic Communications; Notices. You hereby agree to the use of electronic communications in order to enter into this EULA, to create other records and to the electronic delivery of notices, policies and records of transactions between you and Licensor with respect to the Software and this EULA. You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. In addition, Licensor may deliver notices to you by prepaid certified mail, return receipt requested at the address in Licensor’s database; any notice that complies with this Section shall be deemed effectively given upon delivery. Any notice you provide to Licensor must be given by prepaid certified mail, return receipt requested at the address at the top of this EULA, and in addition, a copy of any notice to Licensor must be sent to: Ergotron, Inc., Attn: President, 1181 Trapp Road, Eagan, MN 55121 USA.
SURVIVAL. The provisions of this Section 24 and Sections 3-7, 12, and 15-23 shall survive termination or expiration of this EULA, for any reason.
Data Processing Addendum
This Data Processing Addendum (the “DPA”) is made between the Licensee(“Licensee” or “You”) and Ergotron, Inc. (“ Licensor”) and relates to your purchase of Licensor Software.
Licensee and Licensor each individually is referred to herein as a “Party” and collectively as the “ Parties”.
The DPA is an integral part of Licensor’s End-User License Agreement - Terms and Conditions (the “Agreement”). Licensee enters into this DPA on behalf of itself and in the name and on behalf of its affiliates. Except as expressly stated otherwise, in the event of any conflict between the terms of this DPA, including any appendices referenced herein, and the Agreement, the terms of this DPA shall take precedence.
The DPA applies to your purchase to the extent that either You or Licensor are/is subject to the GDPR as defined below, which mandates that the relationships between a Controller and a Processor (Article 28 GDPR) be governed by a written agreement. The DPA shall also apply to your purchase to the extent that either You or Licensor are/is subject to the CCPA, as defined below.
The relationship between the Licensee and the Licensor does not constitute, and shall not be construed as that of, joint controller relationship.
However, depending on the Processing operations implemented by the Parties and as described in Appendix 1 to this DPA, Licensor may be acting in its capacity as:
A Processor of the Licensee for the purpose of performing the services related to the use of the Software (the “ Software Services”) in accordance with the Licensee instruction, for the sole purpose and duration of the Agreement;
A Controller, determining independently the purposes and means of the Processing operations it implements with regard to support services and developments related to the Software (the “ Support and Maintenance Services”); and/or
A Controller, determining independently the purposes and means of the Processing operations it implements with regard to its needs for Software performance and statistical evaluation.
This DPA defines the role, the capacity and the ensuing liability of each Party based on their qualification for the Processing as detailed in Appendix 1 to this DPA.
This DPA contains only rules applicable to the Processing of Personal Data within the framework of the Agreement, along with additional rules pertaining to the transfer of data outside of the EU/EEA, as may be applicable. In consideration of the obligations herein contained, the Parties have agreed that they shall process any and all Personal Data on the terms set out in this DPA.
Capitalized terms not defined in context or in the Agreement shall have the meanings assigned to them below:
“Appropriate Safeguards” shall mean appropriate safeguards pursuant to Art. 46 GDPR, such as legally binding and enforceable instruments between public authorities or bodies, binding corporate rules or standard data protection clauses adopted by the EU Commission;
“Consumer” shall have the meaning set forth in CCPA § 1798.140(g) and means a natural person who is a California resident, however identified, including by any unique identifier;
“Controller” shall have the meaning set forth in Article 4(7) GDPR and means, within the context of the Agreement, the Licensee and/or its affiliate, inasmuch as it determines the purposes and means of the processing of Personal Data;
“CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., as amended by the California Privacy Rights Act of 2020, Cal. Civil Code § 17981.100 et seq., including any regulation, guideline and opinion issued by any competent authority and as may be amended, superseded, supplemented or replaced from time to time over the performance of the Agreement;
“Data Protection Laws” means, as applicable, (i) the GDPR, (ii) the e-Privacy Directive 2002/58/EC (“e-Privacy Directive”), and any further applicable legislation replacing the e-Privacy Directive and/or the GDPR; (iii) any data protection law, statute or regulation of a European Union (“EU”) Member State, which may apply to one of the Parties pursuant to its data Processing activities or its establishment within the EU; (iv) any applicable national legislation that replaces or converts in domestic law the GDPR; (v) in respect of the United Kingdom, the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419) (“UK Data Protection Law”); (vi) the CCPA and any regulation, guideline and opinion issued by any competent authority of the CCPA; (vii) any guidelines or opinion adopted by the European Data Protection Board (“EDPB”) as to interpret the application of GDPR and the e-Privacy Directive; (viii) the decisions of the Supervisory Authority or the judicial or administrative courts of an EU Member State or the United Kingdom which are binding on one of the Parties by way of its data Processing activities or its establishment within the EU or the United Kingdom; and (ix) the decisions and rulings adopted by the EUCJ or the ECHR regarding Personal Data and privacy protection and freedom of speech or freedom of information
“Data Subject” shall have the meaning set forth in Article 4(1) GDPR and means any natural person to whom Personal Data relates;
“EEA” means the European Economic Area
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, as may be amended from time to time over the performance of the Agreement;
“Personal Data” shall have the meaning set forth in Article 4(1) GDPR and means any information relating to a Data Subject who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that Data Subject; any reference to Personal Data herein shall also mean Personal Information as applicable;
“Personal Information” shall have the meaning set forth in CCPA § 1798.140(o) and means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular California resident or household;
“Processing” shall have the meaning set forth in Article 4(2) GDPR and means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
“Processor” shall have the meaning set forth in Article 4(8) GDPR and, within the context of the Agreement, means the Licensor which Processes Personal Data on behalf of the Controller;
“Personal Data Breach” shall have the meaning set forth in Article 4(12) GDPR and means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
“SaaS Software” shall have the meaning set forth in Definitions Section of the Agreement;
“SCCs” means Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as currently set out at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj.
“Sub-processor” means Processor engaged by Licensor for the provision of all or parts of SaaS Software.
“Supervisory Authority” shall have the meaning set forth in Article 4(21) GDPR and means an independent public authority which is established by an EU Member State pursuant to Article 51 GDPR.
“UK Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the United Kingdom’s Information Commissioner and laid before Parliament in accordance with s119A of the UK Data Protection Law on 28 January 2022, as currently set out at https://ico.org.uk/media/for-organisations/documents/4019483/international-data-transfer-addendum.pdf.
Licensee authorizes and requests that Licensor processes Personal Data defined in Appendix 1 to this DPA.
The purpose of Processing of Personal Data by the Licensor on behalf of the Licensee is the performance of the SaaS Software pursuant to the Agreement.
Each Party undertakes to comply with Data Protection Laws, as applicable to their activities and Processing.
For the performance and management of the Agreement, the Parties, when each acting independently as a Controller, will process Personal Data relating to the other Party’s representatives, as may be mentioned in this Agreement (e.g. signatories for the Parties). Each Party warrants that it will inform its own representative personnel on the Processing of his/her Personal Data by the other Party.
Each Party warrants and is liable for itself and its representative and, as the case may be, for any third party Processor or authorized Sub-Processor to ensure the security, integrity and confidentiality of the Personal Data it processes in the context of the Agreement.
Each Party shall maintain the records of all of their Processing activities (“Records of Processing”), as mandated under Data Protection Laws. The Records of Processing shall contain purposes of the Processing, categories of Personal Data being processed, sources of Personal Data, recipients of Personal Data, legal basis for the Processing activities, Personal Data retention periods resulting from the purposes of the Processing or from legal obligations, possible sharing of the Personal Data between the Parties, or the Personal Data remote access/availability by another Party or by a third party.
The Parties agree that Article 5 of this DPA applies to any Processing of Personal Data which is carried out by the Licensor, acting as Processor on behalf of the Licensee, acting as the Controller in regards to the Processing operation(s) as set forth in Appendix 1 to this DPA.
Other Processing operations which may be performed by Licensor as a Data Controller, as described in Appendix 1, without the involvement of Licensee shall be performed under Licensor’s sole responsibility.
Licensor will follow written and documented instructions received from Licensee with respect to Personal Data, unless, in Licensor’s opinion such instructions (i) are legally prohibited, (ii) require material changes to Licensor’ performance of SaaS, (iii) result in a likely violation of Data Protection Laws and/or (iv) are inconsistent with the terms of the Agreement or Licensor’s documentation relating to the SaaS Software sold hereunder. In any such case, Licensor shall immediately inform the Licensee of its inability to follow such instructions, it being specified that any processing described in the Agreement and the relating SaaS Software Documentation shall be considered as instruction by the Licensee.
Licensor will comply with its obligations under Data Protection Laws with respect to any Personal Data it Processes and shall provide the same level of privacy protection as required by Data Protection Laws. Licensor will notify Licensee if it is unable to comply with its obligations under Data Protection Laws. Licensee has the right to stop and remediate any unauthorized use of Personal Data.
With respect to any Personal Information processed by Licensor, Licensor shall not:
Sell or Share (as such terms are defined under the CCPA) any Personal Information;
Retain, use, or disclose Personal Information for any purpose other than for the business purposes specified in the Agreement, including retaining, using, or disclosing it for a commercial purpose other than the business purposes specified in the Agreement or as otherwise permitted under Data Protection Laws;
Retain, use, or disclose Personal Information outside of the direct business relationship between Licensor and Licensee;
Combine it with Personal Information it receives from or on behalf of another business or that it collects from its own interaction with the Data Subject unless permitted by Data Protection Laws.
To the extent required by Data Protection Laws, Licensor certifies that it understands these restrictions and will comply with them.
Licensee shall, in its own use of the SaaS Software, process Personal Data in accordance with the requirements of Data Protection Laws. Licensee’s instructions to Licensor for the processing of Personal Data shall comply with Data Protection Laws. Licensee shall have sole responsibility for the accuracy, quality, and legality of Personal Data provided to Licensor through the use of the SaaS Software by the Licensee. Licensee shall also be solely responsible for the means by which Licensee acquired such Personal Data, including the legality of providing and making available the Personal Data to Licensor (including, without limitation and as the case may be, obtaining consent as and when required). Licensee shall indemnify Licensor and hold Licensor harmless in case of any breach of this subsection.
Licensor undertakes to keep and maintain adequate and complete documentation of Licensor’s processing or use of Licensee’s Personal Data.
Only the personnel, including employees, contractors and agents, performing the Software Services in accordance with the Agreement and/or have executed confidentiality agreements and entrusted with appropriate instructions as regards the Processing, shall be able to process Personal Data. Licensor shall ensure that such confidentiality obligations survive the termination of the personnel engagement. Licensor will regularly train individuals having access to Personal Data in data security and data privacy.
Licensor also warrants that any person acting under its authority and having access to Personal Data for the provision of the Services shall Process them according to Licensee instructions only.
Licensor shall to the extent legally permitted promptly notify Licensee if (i) Licensor receives a request from a Data Subject to provide access to, correct, amend or delete that Data Subject’s Personal Data, (ii) a Data Subject opposes the processing of her or his Personal Data and/or (iii) the Data Subject wishes to exercise her or his right to be forgotten under GDPR. Licensor shall not respond to such Data Subject’s request without Licensee’s prior written approval, except in order to confirm that such request is properly directed to Licensee.
If Licensor receives a request to know or a request to delete directly from an individual pursuant to the CCPA, Licensor will inform the requestor that the request cannot be acted upon because the request has been sent to a service provider.
To the extent Licensee, in its use of the SaaS Software, does not have the ability to directly and personally access, correct, amend, block or delete Personal Data, as required by Data Protection Laws, Licensor shall comply with any commercially reasonable request by Licensee to facilitate such actions to the extent Licensor is legally permitted to do so, and provided such request is exercised in accordance with Data Protection Laws. To the extent legally permitted, Licensee shall be responsible for any costs arising from Licensor’s provision of such assistance.
At Licensee’s request, Licensor will reasonably support Licensee in dealing with requests from Data Subjects or regulatory authorities regarding Licensor’s processing of Personal Data.
More generally, the Licensor undertakes to provide timely and reasonable assistance to the Licensee, insofar as this is possible, for the Licensee to comply with its obligations under Data Protection Laws, notably, without being limited to and subject to such information not being otherwise readily available, with regard to the provision of information required for the implementation of data protection impact assessments, at Licensee’s expenses.
The Licensor shall implement appropriate physical, technical and organizational measures to protect Personal Data against accidental loss, alteration, unauthorized disclosure or access, in particular where the Processing involves the transmission of Personal Data over a network, and against all forms of unauthorized or unlawful processing. Such measures shall ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymization and encryption of Personal Data, (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident, and (iv) a process for regularly testing, assessing and evaluating the effectiveness of physical, technical and organizational measures for ensuring the security of any Processing for the purpose of providing its services, and as detailed, reviewed and validated by the Licensee in Annex II.
Licensee agrees that Licensor may modify the measures taken in Annex II in protecting Personal Data so long as it does not diminish the level of data protection agreed herein.
As regards Personal Data processed for the provision of Software Services, the Licensee shall be the only Party responsible for:
Licensor shall, to the extent permitted by law, without undue delay notify Licensee if Licensor becomes aware of any Personal Data Breach relating to Personal Data. Taking into account the nature of the processing and the information available to Licensor, Licensor shall provide Licensee with commercially reasonable assistance, with Licensee’s obligation to provide notification of any such Personal Data Breach to any Supervisory Authority, CCPA authority, and/or to the Data Subject and/or Consumer, as applicable. Specifically, Licensor agrees to make good faith efforts to identify the cause of such Personal Data Breach and take such steps as Licensor deems necessary and reasonable in order to remediate the cause of the Personal Data Breach, to the extent the remediation is within Licensor’s reasonable control. The obligations herein shall not apply to the extent that the Personal Data Breach is caused by Licensee and/or Licensee’s affiliates.
Licensee shall notify Licensor at least 60 (sixty) days before the expiration or earlier termination of the Agreement for any reason of its intent to have the Personal Data returned to Licensee or deleted. If requested to return Personal Data and provided that Licensee has not be provided with the possibility to extract the Personal Data directly from the SaaS Software, Licensor shall do so in a commonly used format within 15 (fifteen) days of the effective end of the Agreement.
In any case, further to such provision of Personal Data by Licensor to Licensee or provided that Licensee has not expressly requested the return of the Personal Data, the Licensor shall delete Personal Data including all the copies of it within 15 (fifteen) days from the effective end of the Agreement for any reason. The parties agree that Licensor may retain one copy of the Personal Data as necessary to comply with any of Licensor’s legal, regulatory, judicial, audit or internal compliance requirements.
Licensee acknowledges and agrees that (i) Licensor may retain affiliates of Licensor or third party Licensors of SaaS or other services as Sub-processors in connection with the performance of the SaaS Software. The current Sub-processors are listed in the Annex III. Licensor is responsible for any breaches of this DPA caused by Sub-processors retained by Licensor.
Licensor shall impose on its Sub-Processors, by way of a written agreement, similar and no less stringent obligations as are imposed on Licensor under this DPA.
Licensee hereby generally authorizes Licensor to engage additional Sub-processors for the provision of SaaS Software provided Licensor notifies Licensee in advance in writing, including by email, of any changes to the list of Sub-processors before they are being engaged (except for replacement of an existing Sub-processor in urgent cases or a deletion of an existing Sub-processors without replacement). Licensee may object to Licensor’s use of a Sub-processor by notifying Licensor in writing within five (5) business days following the receipt of Licensor’s notice to Licensee of a change in Sub-processor, on the basis that the contemplated Sub-processor would create an objective and legitimate concern with regard to the security, integrity, confidentiality and/or availability of the Personal Data along with Licensee’s express intent to exercise its rights under Article 11 below (“Reasonable Objection”).
If Licensee does not object within five (5) days of receipt of the notice, Licensee is deemed to have accepted the new Sub-processor. If Licensee does object to the use of the Sub-processor within this timeframe, the parties will come together in good faith to discuss a resolution. If Licensee and Licensor are unable to resolve Licensee’s objection in that good-faith discussion within ten (10) days from Licensee’s Reasonable Objection, Licensor may choose to: (i) not use the Sub-processor or (ii) take corrective steps requested by Licensee in its Reasonable Objection and proceed to use the new Sub-processor. If none of these options is reasonably possible and Licensee continues to maintain a Reasonable Objection to the engagement of the new Sub-processor, then either party may terminate the Agreement on fifteen days’ written notice to the other party. If Licensee’s Reasonable Objection remains unresolved fifteen (15) days after it was first raised, and Licensor has not received any notice of termination from Licensee, Licensee is deemed to have accepted Processor’s engagement of the new Sub-processor.
Upon Licensee’s request and subject to confidentiality obligations of the Agreement, Licensor will make available to Licensee information necessary to demonstrate its compliance with the obligations laid down in this DPA.
Where the mandatory Data Protection Law provides Licensee with a direct audit right at Licensee’s site, Licensor will allow for and contribute to audits, including inspections, conducted by the Licensee or another auditor mandated by the Licensee, provided such an auditor is not a competitor of the Licensor and has duly executed a non-disclosure agreement with Licensor.
In case of an audit, the Licensee may contact Licensor using contact details provided in the Agreement to request an on-site audit, at Licensee’s sole expenses, with at least sixty (60) days prior notice, that shall be limited to the audit of the architecture, systems and procedures relevant to the protection of Personal Data at Licensee’s locations where Personal Data is stored. Before the commencement of any such on-site audit, Licensee and Licensor shall mutually agree upon the scope, timing, and duration of the audit, none of which shall adversely impact Licensor’s business activities.
Licensee shall reimburse Licensor for any time expended by the Licensor for any such onsite audit at the Licensor’s then-current professional services rates, which shall be made available to Licensee upon request. Licensee shall promptly notify Licensor of any non-compliance discovered during the course of an audit. Such audit will be limited to once in any twelve-month period, except where Licensee is able to evidence that an additional audit over this time period has been mandated by a Supervisory Authority.
Upon Licensee’s request, Licensor shall provide Licensee with reasonable cooperation and assistance as needed to fulfil Licensee’s obligation under GDPR to carry out a data protection impact assessment related to Licensee’s use of the SaaS Software, to the extent Licensee does not otherwise have access to the relevant information, and to the extent such information is available to Licensor. Licensor shall provide reasonable assistance to Licensee in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Article to the extent required under GDPR.
If there is a transfer of Personal Data out of the EEA to a country not deemed by the European Commission to have adequate data protection, such transfer will be governed by the SCCs, the terms of which are hereby incorporated into this DPA. In furtherance of the foregoing, the parties agree that:
In respect of Personal Data where the Swiss Federal Act on Data Protection (“FADP”) applies, the Parties agree to comply with the obligations of the SCCs as provided in Paragraph 6.1, subject to the following amendments: (i) references in the SCCs to the GDPR shall refer to the FADP; (ii) references to specific Articles of GDPR shall be replaced with the equivalent article of the FADP; (iii) references to “EU”, “Union” and “Member State” shall be replaced with references to Switzerland; (iv) the term “member state” must not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence in accordance with Standard Contractual Clause 18(c); and (v) the SCCs shall also protect the data of legal persons until the entry into force of the revised FADP.
In respect of Personal Data where UK Data Protection Law applies, the UK Transfer Addendum is incorporated into this DPA and applies to the transfer. Table 1 is completed with the information provided in Annex I to this DPA. Table 2 is completed with the information in Paragraph 6.1. Table 3 is completed with the information provided in Annexes I and II to this DPA. Table 4 is completed by selecting both “Importer” and “Exporter.” Part 2 is selected.
The following terms are added by the Parties further to the decision of the European Court of Justice of the European Union C-311/18 ("Schrems II") and inasmuch as Licensor is located in a jurisdiction whose regulatory framework imposes on it obligations which may contrary to those terms and could impinge on the contractual guarantee of an adequate level of protection against access by the public authorities of that third country to that data.
In that regard, Licensor warrants, in its name and on behalf of any subprocessors, that it:
|
Is not considered as an electronic communication service provider, for the purpose of FISA Section 702; or |
X |
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Is considered as an electronic communication service provider, for the purpose of FISA Section 702 |
Where Licensor is subject to Section 2.b above, it shall keep the Licensee informed of any request to disclose Personal Data or any event which could lead to a breach of the undertakings contained in the SCCs prior to the occurrence of any such disclosure or breach (an "Event"), inasmuch as authorized by the law applicable to the Licensor; and where the disclosure of Personal Data or breach of the SCCs cannot be otherwise prevented, terminate the SCCs immediately following an Event, suspend any transfer of Personal Data and provide the Licensee with a written confirmation of such suspension.
Where such termination would prevent the continuation of the Agreement, and notwithstanding anything to the contrary in the Agreement, the Event shall be a cause for termination of the Agreement by either Party with no fault of either Party, subject to the terminating Party duly documenting the Event. The foregoing shall not be construed in any way as a possibility for either party to terminate the SCCs or the Agreement for convenience.
Should additional requirement in the wake of Schrems II come to require additional measures at local or European level, the parties undertake to amend this Clause 6.4 in good faith without undue delay.
Each Party represents and warrants that it will indemnify and hold the other Party harmless against any direct loss and damage to the latter resulting from a breach by said Party or its Representative of its contractual obligations under this DPA and/or any Data Protection Laws, subject to any limitation of liability provision in the Agreement.
Each Party, acting as Controller, shall be liable for the damage caused by processing which infringes Data Protection Laws.
The Licensor, acting as Processor, shall be liable for the damage caused by Processing only where it has not complied with obligations of Data Protection Laws specifically directed to Processors or where it has acted outside or contrary to the Licensee instructions.
The DPA shall come into force on the Effective Date shall be automatically terminated when the Agreement terminates or expires for any reason, notwithstanding the survival of the relevant provision for as long as Personal Data related to a Party is retrained by the other Party.
This DPA shall be governed by, and constructed in accordance with, the laws applicable to the Agreement. The Parties irrevocably submit to the exclusive jurisdiction in accordance with the Agreement.
This DPA prevails over any previous agreements with respect to this subject matter and, in particular, cancels and replaces any particular provisions in the Agreement which may relate to the Processing of Personal Data.
DETAIL OF THE PROCESSING
|
Processing operation |
Legal basis |
Role of the Licensor |
Role of the Licensee |
Personal Data Involved |
Transfer outside of the EU/EEA |
|
Performance Software further to the Agreement |
Necessity for the performance of the contract entered into by Licensee and Licensor |
Data Processor |
Data Controller |
Personal Data: contact details of end-user employed by Licensee having access to the Software, credentials to access the Software. |
Yes (United States of America) |
|
Support and Maintenance Services |
Personal data of Licensor and end-user needed to perform Support and Maintenance Services, i.e. contact and credentials pertaining to the above-mentioned Data Subjects, usage data. |
||||
|
Software Performance and statistical evaluation |
Legitimate interest of Licensor to improve its services |
Data Controller |
N/A |
Data related to the use of the Software by end-users, i.e. number of connections and frequency of use, action performed and encountered issues and troubleshooting. |
No - Direct collection by Licensor from the end-users |
LIST OF PARTIES
Data exporter(s):
Name: Licensee as per End User License Agreement
Address: See End User License Agreement
Contact person’s name, position and contact details: See End User License Agreement
Activities relevant to the data transferred under these Clauses: Performance of the services pursuant to the Agreement and as further described in the DPA.
Signature and date: See End User License Agreement
Role (controller/processor): Controller
Data importer(s):
Name: Ergotron, Inc.
Address: 1181 Trapp Road St. Paul, MN 55121
Contact person’s name, position and contact details: See End User License Agreement
Activities relevant to the data transferred under these Clauses: Performance of the Services pursuant to the Agreement and as further described in the DPA.
Signature and date: See End User License Agreement
Role (controller/processor): Controller and processor
DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred:
Categories of personal data transferred:
The frequency of the transfer:
Nature of the processing:
Purpose(s) of the data transfer and further processing:
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:
COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
The Netherlands.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
|
Control Category |
Control Type |
Control Description |
|
Physical |
Third Party Data Center |
Physical access control lists manage ingress and egress Security fencing Biometric readers at all main entry points 24x7x365 security officers with fixed locations at front and rear access points 24x7x365 CCTV recordings Access control (mantraps) |
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Administrative |
Policy |
Security Account Password Handling of Personal Information Off Boarding Access Control |
|
Administrative |
Process |
Incident response Patching |
|
Administrative |
Standards |
Coding Security Standards for Managed Applications Server Build Data Retention and Disposal Key Management |
|
Administrative |
Compliance |
Security Compliance Account Compliance |
|
Administrative |
Training |
Security Awareness User Compliance Training |
|
Technical |
Preventative |
Monthly Vulnerability Scans Malware Scans Firewall Anti-Virus IP Whitelisting & Blacklists |
|
Technical |
Detective |
Infrastructure Access Logs Application Access Logs Application Audit Trails Application Login Logs |
|
Technical |
Access Control |
Roles and Permissions VPN – Operational / Admin 2 factor auth on application |
|
Technical |
Encryption |
SSL Data Encryption in Transit Data Encryption at Rest Password Encryption Use of strong encryption protocols such as AES |
|
Technical |
User Controls |
User Authentication Account Expiry Password Complexity Account Lockout Session Timeouts Application Whitelisting |
LIST OF THE AUTHORIZED SUB-PROCESSORS
Salesforce
Heroku
AWS